Citation Nr: 9903422
Decision Date: 02/05/99 Archive Date: 02/10/99
DOCKET NO. 98-03 843 ) DATE
)
)
On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) in
Oakland, California
THE ISSUE
Entitlement to an effective date prior to September 13, 1995,
for the grant of a total disability rating based on
unemployability.
WITNESS AT HEARING ON APPEAL
Veteran
ATTORNEY FOR THE BOARD
Heather J. Harter, Counsel
INTRODUCTION
The veteran served on active duty from April 1946 to April
1947, and from January 1952 to February 1953.
The veteran had previously executed a formal appointment of a
veterans' service organization to represent him before the
VA. However, during the October 1998 videoconference hearing
on appeal held before the undersigned Member of the Board of
Veterans' Appeals (Board), he indicated that he had dismissed
his representative and would represent himself in this
appeal. The Board notes that the veteran has a right to
representation before the VA at all stages of the appeal and
that he may designate a representative at any time. Any such
designation will become effective when it is received by the
VA. 38 U.S.C.A. § 7105; 38 C.F.R. §§ 20.600, 20.602, 20.603,
20.604. 20.605, 20.606.
FINDINGS OF FACT
1. All relevant evidence necessary for an equitable
disposition of the appeal has been obtained.
2. By final appellate decision of March 1987, the Board
declined to reopen the claim for entitlement to service
connection for a psychiatric disorder.
3. In September 1995, the veteran filed a claim for
entitlement to service connection for post-traumatic stress
disorder (PTSD).
4. Service connection for PTSD was granted in February 1997,
effective in September 1995.
5. In February 1997, the veteran filed a claim for
entitlement to a total disability rating for compensation
based upon unemployability.
6. The RO granted a total disability rating for compensation
based upon unemployability effective in September 1995.
CONCLUSION OF LAW
An effective date earlier than September 13, 1995, is not
warranted for the grant of a total disability rating for
compensation based upon unemployability. 38 U.S.C.A.
§§ 5101, 5110 (West 1991 & Supp. 1998); 38 C.F.R. § 3.400
(1998).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
The veteran contends an earlier effective date for the grant
of a total disability rating for compensation on the basis of
individual unemployability should be assigned. He asserts
the grant should have been effective in 1985, when he filed a
claim for Social Security Disability benefits, which was
granted by the Social Security Administration in 1986. He
also asserts the grant should have been effective earlier
than that on the basis that previous RO decisions denying
entitlement to service connection for a psychiatric/nervous
disorder contained error and should be reversed.
The effective date of an award of disability compensation to
a veteran will be the day following the date of discharge if
the application is received within one year of that date.
Otherwise the effective date of the award will be the date of
receipt of the application for compensation. All effective
date determinations must be based upon the facts found,
unless otherwise specifically provided. 38 U.S.C.A. §§ 5101,
5110; 38 C.F.R. § 3.400.
As noted above, the veteran served on active duty from April
1946 to April 1947, and from January 1952 to February 1953.
During the period of time between his two tours of duty, he
applied for and received outpatient dental treatment from the
VA. Following his discharge from service in February 1953,
he submitted a claim for a left hand disability and for
urethral discharge. Service connection for both disabilities
was granted in May 1953.
Medical evidence of record reflects that the veteran was
hospitalized at the United States Public Health Service
Hospital in Fort Worth, Texas in June 1954 for a
schizophrenic reaction. The same month, the RO prepared a
memorandum rating decision which granted service connection
"for hospital or treatment purposes only" for an active
psychosis, under the provisions of "PL 239, 82nd Congress."
Public Law 239 has since been codified at 38 U.S.C.A. § 1702,
which provides, in pertinent part, that VA treatment may be
provided to any veteran of the Korean conflict who developed
an active psychosis within two years after discharge or
release from active service, but before May 8, 1957, shall be
deemed to have incurred such disability during active
service. Thus, veterans of a period of war who develop an
active psychosis within two years after discharge are
eligible for treatment of the psychosis, but are not eligible
for compensation payments as the statutory provisions
regarding compensation for psychoses require that the
disability must have become manifest to a degree of
10 percent or more within one year from the date of
separation. See 38 U.S.C.A. §§ 1101, 1112.
In this case, as the veteran was discharged from service in
February 1953, and the first evidence showing active
psychosis was dated in June 1954, the evidence shows that the
psychosis developed after the one-year limitation set forth
in 38 U.S.C.A. § 1112, but before the two-year limitation
period provided by Public Law 239, codified at 38 U.S.C.A.
§ 1702. Thus, in the June 1954 rating decision, the RO
properly adjudicated the veteran to have been eligible for
treatment but not compensation for an active psychosis.
The veteran submitted a claim for entitlement to service
connection in July 1954. The RO denied the claim in October
1954, on the basis that schizophrenia was first diagnosed in
June 1954 and was not demonstrated in service. The veteran
did not disagree with the denial or correspond with the VA in
any way until September 1974, when he filed a new claim. The
RO denied the claim in November 1974. The veteran continued
this pattern of filing claims which were denied and failing
to file timely disagreement with the denials until April
1976, when he filed another claim and then perfected an
appeal of the denial to the Board. By decision of March
1987, the Board held that no new and material evidence had
been submitted to reopen the previously-denied claims for
entitlement to service connection for a variously-classified
psychiatric disorder.
Following the March 1987 Board decision, the veteran took no
action regarding a claim for entitlement to service
connection for a psychiatric disability until September 1995
when he filed a claim for entitlement to service connection
for PTSD. In a February 1997 rating decision, the RO granted
service connection for PTSD with dysthymic disorder and
assigned a 70 percent disability evaluation, effective
September 13, 1995. The veteran submitted an application for
entitlement to a total disability rating based upon
unemployability in February 1997. The RO granted the benefit
sought by rating decision of the same month and assigned an
effective date of September 13, 1995, apparently on the basis
that the claim for a total rating was implied in the
September 1995 claim for entitlement to service connection
for PTSD.
As set forth above, under governing law and regulation, the
effective date of an award of disability compensation to a
veteran will be the day following the date of discharge if
the application is received within one year of that date.
Otherwise the effective date of the award will be the date of
receipt of the application for compensation. 38 U.S.C.A.
§ 5110; 38 C.F.R. § 3.400. Thus, the date of receipt of the
claim should have been identified as the date of application
for entitlement to a total disability rating based upon
unemployability received in February 1997. In this case, the
RO has granted the 100 percent benefits back to the date of
claim for service connection for the veteran's psychiatric
disorder, since the veteran filed a notice of disagreement
with the rating action assigning the initial evaluation for
his service-connected disability.
If the claim for entitlement to a total disability rating for
compensation on the basis of unemployability is viewed as a
claim for an increase in the total compensation award, rather
than a claim for a separate and different benefit, then the
provisions of 38 C.F.R. § 3.400(o)(2) are for application.
According to this regulation, the effective date of a claim
for entitlement to an increase in disability compensation
will be the earliest date as of which it is factually
ascertainable that an increase in disability had occurred if
the claim is received within one year from such a date,
otherwise, the effective date will be the date the claim was
received. 38 C.F.R. § 3.400(o)(2). Utilizing this analysis
and assuming that the veteran has been totally disabled due
to his service-connected disabilities for some time, the
earliest effective date assignable would be one year prior to
the receipt of the veteran's claim for increased compensation
due to unemployability, or February 1996. In fact, the RO
has already granted the total rating benefits more than the
one year prior to the date of the claim for a total rating in
assigning the effective date, on the basis of the veteran's
claim in September 1995 for service connection.
As there is no basis in the law and regulations regarding the
assignment of effective dates for any date prior to September
1995, the veteran's claim for entitlement to an effective
date prior to September 1995 must be denied. There is no
evidence that the veteran filed a claim for unemployability
benefits prior to February 1997. The Board is cognizant of
the veteran's argument that entitlement to a total disability
rating for compensation on the basis of unemployability may
have arisen before that time, however, the law specifically
provides that the later of the two dates, when entitlement
arose versus receipt of the claim for benefits, will trigger
entitlement to VA benefits. 38 C.F.R. § 3.400.
The preponderance of the evidence is therefore against the
veteran's claim for entitlement to an earlier effective date
for the grant of a total disability rating for compensation
on the basis of unemployability and the appeal must be
denied.
The veteran also asserts the grant of a total rating based on
unemployability should have been made effective in 1985, when
he filed a claim for Social Security Disability benefits.
Although certain regulatory provisions require that claims
for death benefits filed with the Social Security
Administration are constructively deemed to encompass a
corresponding claim for VA dependency and indemnity
compensation, (see 38 C.F.R. §§ 3.153, 3.201) there is no
analogous provision regarding claims for unemployability or
disability compensation. The Court of Veterans Appeals
(Court) has addressed this issue and has concluded that
outside the context of death benefit claims, the VA cannot be
held to have constructive notice of Social Security records.
Furthermore, the Court held that a duty to obtain Social
Security records in VA disability compensation claims only
arises after a well-grounded claim has been filed. Murincsak
v. Derwinski, 2 Vet. App. 363, 370 (1992). Thus, the
existence of an application for Social Security disability
benefits cannot serve as an application for VA compensation
benefits and the VA does not have a duty to obtain records
related to a Social Security disability application until
after the VA, 1) has been actually notified of their
existence, and 2) is in receipt of a well-grounded claim for
benefits.
A review of the record shows that while the veteran's appeal
to reopen the previously-denied claim for entitlement to
service connection for a psychiatric disorder was pending at
the Board in 1986, the Social Security Administration
requested verification from the RO of the amount of VA
compensation being paid to the veteran for his other service-
connected disabilities, apparently for purposes of
calculating the appropriate amount of his Social Security
award, although the reason for the request is not explained
in the letter. Although the RO did not provide a response to
the Social Security Administration until after the
promulgation of the Board decision when the claims file had
presumably been returned to the RO; it is reasonable to
conclude that the VA may have had notice that the veteran had
dealings of some sort with the Social Security
Administration. However, the veteran did not file a claim
with the VA on the basis of unemployability until February
1997, when he filed an application for entitlement to a total
disability rating based upon unemployability. Thus, because
a well-grounded claim pertaining to the issue of
employability was not received until February 1997, the VA
had no duty until that time to inquire into the nature or
type of Social Security benefits received by the veteran.
The veteran's application for Social Security benefits thus
cannot serve as a justification for the assignment of an
earlier effective date for the award of a total disability
rating for compensation based upon unemployability.
With regard to the veteran's argument that the grant should
have been effective earlier than September 1985 on the basis
that previous RO decisions denying entitlement to service
connection for a psychiatric/nervous disorder contained error
and should be reversed, the Board notes that all previous RO
decisions denying entitlement to service connection for a
psychiatric and/or a nervous disorder have been subsumed in
the subsequent March 1987 Board decision. 38 U.S.C.A.
§ 7104(a); 38 C.F.R. § 20.1104. Any attempt to assert the
presence of clear and unmistakable error in RO decisions
which have been subsumed in subsequent Board decisions
effectively translates into a claim of clear and unmistakable
error in the subsuming Board decision. The veteran's
contention that all previous RO decisions should be reversed
in order to warrant an earlier effective date for the grant
of a total disability rating thus lacks merit under the law.
Viewed in this light, the veteran's contention must be that
the Board decision of March 1987, which denied service
connection for a psychiatric disability, is erroneous to some
degree. However, a review of the record shows that the
veteran has never asserted the presence of clear and
unmistakable error in the Board decision with the specificity
required to raise this issue. In other words, he has not
asserted that the Board failed to apply the correct statutory
and regulatory provisions, in effect at the time, to the
correct and relevant facts, as they were known at the time.
See Oppenheimer v. Derwinski, 1 Vet. App. 370, 372 (1991);
and Fugo v. Brown, 6 Vet. App. 40 (1993), en banc review
denied, Fugo v. Brown, 6 Vet. App. 162 (1994). Review of his
contentions does not reveal an assertion which amounts to any
more than a mere disagreement as to how the facts were
weighed or evaluated. See Russell v. Principi, 3 Vet. App.
310 (1992).
The veteran is advised that recent legislation provides for
the review of Board decisions based upon the existence of
clear and unmistakable error. See 38 U.S.C. § 7111.
Implementing regulations, to be codified at 38 C.F.R.
§§ 20.1400-20.1411, will become effective February 12, 1999.
If, after review of the new law and regulations, the veteran
believes he can point to the presence of clear and
unmistakable error in the prior Board decision with
specificity, he may request consideration of this issue in
accordance with the procedures outlined in the regulations.
ORDER
An effective date earlier than September 13, 1995, for the
grant of a total disability rating based on unemployability
is denied.
V. L. Jordan
Member, Board of Veterans' Appeals
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1998), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans' Judicial Review Act,
Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans' Appeals.
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